Category Archives: Dispute Resolution and Your Business

Cafe Mediate is the latest brainchild of mediation marketing and conflict resolution expert Tammy Lenski, who publishes two popular blogs, Conflict Zen and Making Mediation Your Day Job. Cafe Mediate (motto: “where conversation not caffeine is the stimulant”), a new monthly podcast series, will feature lively discussion among ADR professionals about topics relevant to practitioners, from the pragmatic to the provocative.

The inaugural session just aired. This transatlantic conversation brought together me, Tammy, and international business mediator Amanda Bucklow, who is based in England and blogs at the top-drawer Mediation Times, to talk about an issue of great interest to conflict resolution professionals: value billing.

In his 2006 book Conversation: A History of a Declining Art, author Stephen Miller evoked a golden age of discourse that England enjoyed in the 18th century. The seat of that renaissance of conversation was the coffeehouse, where wit and aphorism flourished. Men gathered to warm themselves with a dish of coffee, transact business, gather news, enjoy the latest gossip, and of course converse.

Although the British coffeehouse has largely faded from public memory, a spiritual descendant has emerged possessing many of its ancestor’s most distinctive attributes: the blog. Like its 18th century predecessor, the blog is simultaneously marketplace, library, and public square, with a wealth of views and ideas clamoring for consideration, attracting businesspeople, scholars, thinkers, writers, celebrities, and ordinary citizens.

ADR professionals and scholars perhaps would have felt at home in the 18th-century coffeehouse. We and the coffeehouse share similar virtues: ours is a field that promotes and pursues the exchange of ideas and information. It is fundamentally about conversation. And, like England in the 18th century, the ADR field is enjoying its own renaissance in discourse, one that flowers lushly online, thanks to the phenomenon of blogging, drawn to its capacity for bringing people and fresh thinking together…

For ADR bloggers and our readers, the phenomenon of blogging has dramatically affected us and the way we practice in three key areas: the business of ADR, the dissemination and discussion of information and ideas, and professional networking. I invite you to explore them with me…

Sometimes I wonder how I lived without the internet, that seemingly endless flow of news and ideas, which, loaves-and-fishes style, miraculously replenishes itself with every visit.

While the quality of content can be uneven and its reliability sometimes suspect, the web is nonetheless a lush hunting ground for discerning information seekers. The best part of course is that so much of it is free.

This free 32-page booklet provides step-by-step guidelines for organizing and running productive meetings. There are sample forms to adapt for your own meeting, as well as tips for keeping meetings on track with suggested interventions for dealing with everything from personal attacks to sidebar discussions.

Several months ago, a former student of mine, about to sit for the bar, asked me to write for him the letter of recommendation his application package required. Although at that time my schedule was hectic, I was happy to do so and accommodated his request, completing the letter and mailing it off to him well in advance of the bar deadline. I emailed him to let him know it was on its way.

Several weeks passed, and I heard nothing at all from my former student — not an email or phone call to let me know he’d received my letter. I grew concerned that the letter had gone astray and he had failed to receive it. Then, as the days passed, I became annoyed that he hadn’t acknowledged an effort undertaken on his behalf and at his request. At last I emailed him to ask if the letter had reached him. Yes, he wrote back, it came. And then, as an afterthought, he added, by the way, thanks.

His casual response disappointed me. I had taken time to reflect on my personal knowledge of him and his character and then draft with care a letter to help him achieve an important professional goal. Yet it never occurred to him to contact me to reassure me that my letter reached its destination and that he appreciated my help.

Expressing appreciation requires little effort yet means so much to the recipient. You can pick up the phone, send an email, even write a note. Yet failure to do so results in great cost. It saddens me that my former student has unthinkingly burned a bridge. It is unlikely now that I will ever send a client or business opportunity his way.

His carelessness made me think a lot about what “thank you” really means. It is not simply expressing gratitude for the extra mile, the care, the thought. “Thank you” is also about renewing or building relationships. “Thank you” honors a past deed. “Thank you” affirms hope for the future.

If someone gave you advice you asked for, put you in touch with people who could help you, referred you business, linked to your web site, made available resources so you could get something done, or otherwise did you a good deed, thank them. Although some (like gratitude’s fiercest champions, attorneys Dan Hull and Holden Oliver) would suggest a hand-written note (preferably on Crane’s stationery), others like me would say the message itself matters more than the medium in which it is delivered.

a web site born of a radical and hopeful idealism: to virally transmit ideas through a culture medium of community, respect, and dialogue.

Recognizing that “the best discussions in science, medicine, business and politics have always been the civil ones”, ChangeThis publishes what it calls manifestos — proposals for change which serve as “a reasoned, rational call to action, supported by logic and facts”. The goal is to provide a forum for “the rational and thoughtful arguments that help people change their minds to a more productive point of view.” In the egalitarian spirit with which ChangeThis was founded, anyone is welcome to submit ideas for a manifesto.

This online experiment in changing minds has thrived, amassing in the past two years a considerable inventory of innovative thinking, and consequently I continue to stop by in search of ideas to invigorate my work.

On a recent visit to the site I was struck by the premise of a newly published manifesto, “Questionating“, by business consultant Corinne Miller. Miller celebrates the power of the question and its role in creativity and fresh thinking:

Questions have been the enablers of innovation for centuries. As Albert Einstein said, “To raise new questions, new possibilities, to regard old problems from a new angle requires creative imagination and marks real advances in science”…

Questions use verbs and words that activate key areas of the brain that, in turn, increase the volume and variety of questions. The more questions, the more creativity and innovation. We like to say that questions open the innovation pipeline.

Despite the role of the question in stimulating discoveries and advancements, Miller observes that people seem to lose the willingness to ask questions as they grow older:

As we age, we disengage… from asking questions. Questions decrease as aging increases. Think about it. Why does the typical 5-year old ask about 65 questions a day, while the typical 40-something asks only about 6 questions a day? Why is it that the older we get, the fewer questions we ask? We’ve found that the most popular answers to this question have been: asking a question makes one look stupid; asking a question is a sign of weakness; and people think they know the answer so they don’t feel the need to ask.

What a sad state that we have created a business culture where asking questions is seen as a weakness. Shouldn’t it be the opposite, where not asking questions is a weakness?

How can we change this?

Indeed. How can we change this? What can any of us do to challenge the notion that asking questions displays weakness or even disrespect? What can we do to make it safe to ask questions of our institutions, of our leaders, of each other? Questions reflect, reveal, resolve; they shine light into the dark corners. Most importantly, questions give us the ability to see the world afresh. As Bertrand Russell once said, “In many affairs it’s a healthy thing now and then to hang a question mark on the things you have long taken for granted.”

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

Marvin Schuldiner, a commercial mediator and arbitrator who blogs at Sanns Mediation World of ADR, tells businesses how to avoid a lawsuit. While there’s no guarantee against ever getting sued, you can reduce the likelihood of litigation by doing something that shouldn’t be rocket science: treat customers right and respond promptly to complaints.

Last week my fellow blogger Stephanie West Allen forwarded to me a link to a provocative article recounting “Arbitration’s Fall From Grace“. It seems that companies which had been inserting mandatory arbitration clauses into contracts with their customers in an effort to avoid costly court battles are now finding themselves spending inordinate amounts of time and money fighting for the enforceability of these clauses in, ironically, court.

None of this should come as surprising news.

Many of us have long recognized that mandatory arbitration clauses are bad for business. They are bad for consumers and definitely bad for customer relations. Typically they form part of a contract of adhesion—a take-it-or-leave-it, one-sided agreement consisting of terms that the customer has no power to bargain for, usually printed in a microscopic font barely visible to the naked eye written in language that even lawyers have trouble understanding. This agreement is never directly brought to the attention of the customer, since it typically arrives in an envelope packed with advertising material and other irrelevancies–most customers are blissfully unaware that such an agreement exists at all.

Think about the message a mandatory arbitration clause conveys to the customer. Basically the message is this:

If you have a legal beef with us, you can’t go to court.

You have to use arbitration, and you will have to share with us the costs for the arbitrator’s services (of course if you could go to court, which you can’t, you’d be getting the judge’s time for free, courtesy of taxpayers).

We, not you, get to pick the dispute resolution services company which will provide the arbitrator.

If lots of you have a beef with us, you can’t join forces in a class action law suit to enforce your legal rights collectively and publicly. That would level the playing field between us, a mega-corporation, and you, an insignificant flyspeck of a customer. We can’t allow that.

This dispute will be resolved according to the laws of a state far, far away from where you live and work–laws which favor us, not you.

In short, we are going to stack the deck so thoroughly against you that you have little hope of achieving justice.

Thanks, and have a nice day.

Mandatory arbitration clauses, in my own experience, seem to be favored by large corporations with poor customer service records and a history of unfair or deceptive business practices. Mandatory arbitration clauses are a way to limit corporate accountability to customers.

As arbitration has fallen out of favor, mediation, a less frequently discussed alternate dispute resolution method, seemingly is gaining traction among corporations. Though the same issues that plague arbitration — a lack of discovery rights and enforceability — remain in mediation, the less-structured environment tends to be cheaper, less adversarial and quicker than an arbitration hearing.

At a recent continuing legal education event for corporate counsel in Atlanta, speaker David C. Vigilante, associate general counsel and chief litigation counsel at Turner Broadcasting, told the audience that he’s not a fan of arbitration because the process requires companies to give up some legal rights — and it’s binding. He called mediation “the worthwhile companion to its less worthwhile exercise, arbitration.”

In an interview after the event, he added that “most lawyers will tell you today that mediation is one of the most fantastic things to come along.”

Not surprising when mediation encourages communication, addresses misunderstandings, and levels the playing field for all parties at the table.

Relis finds evidentiary support for the value of bringing plaintiffs and defendants face to face, despite the efforts of counsel to keep them apart. Her findings reveal the disconnect between attorneys’ objectives and those of their clients and shows that plaintiffs and defendants are more closely aligned than one might suppose, seeking similar outcomes and desiring above all the opportunity to communicate. And Relis sees ample evidence for what mediators have long known from experience, namely that mediation meets needs beyond those which the legal system can remedy, something other than compensation or a favorable verdict. Mediation provides what Relis calls “human benefits”–understanding, forgiveness, empowerment, or merely the opportunity to be heard.

And it’s actually a question I found myself asking last week as I suffered through one of the worst customer service experiences it’s ever been my misfortune to endure.

I got a phone call from a sales rep at a very well known telephone directory company. This past year, against my better judgment, I had decided to experiment with some phonebook and online directory advertising through this same very well known company. My online listing has never functioned properly, despite repeated calls to tech support. I basically derived about the same benefit from my advertising dollars as I would have had I simply flushed the cash straight down the loo. So in all fairness I have to say that I was not exactly in a receptive frame of mind to increase my advertising spending when the sales rep called.

The sales rep, however, did nothing to aid his cause. His main problem? He didn’t listen to me. Not to a single word I said. It was pretty obvious that he didn’t care what my needs were, since he never bothered to ask. Instead, he argued with me. And he interrupted me. The guy would not let me get a word in edgewise. And, worst of all, not only did he talk right through me, he talked down to me, too.

Thanks to his utter inability to listen, this sales rep succeeded in sabotaging whatever good will may have still existed between me and his employer.

Ironically, what he also succeeded in doing was to show me firsthand how important listening is–and how acutely its absence is felt when it doesn’t happen.

Certainly I understand that as a professional–it’s after all a large part of what mediators do. And I think that generally most people understand, in an academic kind of way, just how important listening is to business and social interactions.

But listening is more than just a theoretical exercise–it has real-world impact.

By the way, do you want to become a better listener? Take a mediation training. It’s a great way to learn and apply listening skills. And if you don’t have time to take a mediation training? Then try this:

Remove distractions. Listening and multi-tasking don’t mix.

Ask questions to find out what people are thinking. As Roger Fisher once said, “Statements get opposition. Questions get answers.”

Listen carefully to the answers. Really listen. Most of the time, instead of listening, we’re planning a snappy comeback or thinking of our next question. Let go of that–just open up your ears and listen.

Summarize in your own words what you’ve just heard.

Lather, rinse, and repeat.

Now go ahead and practice those listening skills on an unsuspecting colleague, friend, or family member. You’ll be amazed at how much you’ll hear.